A compensation measure is not automatically permissible merely because a foreign qualification differs from the Swiss reference qualification. The decisive question is whether the competent authority can specifically demonstrate that legally relevant and substantial differences remain which are not already compensated by education, professional experience or other proven competencies.
Where Directive 2005/36/EC or the corresponding recognition framework applies, an adaptation period or an aptitude test may in particular be considered. This requires a prior individualised assessment.
When are compensation measures permissible?
Not every divergence between two training programmes is a «substantial difference».
Under Article 14(4) of Directive 2005/36/EC, the knowledge, skills or competences concerned must be essential for pursuing the profession and the training completed must show substantial differences in those contents.
The Federal Administrative Court holds that the competent authority must establish the existence of such differences. If it cannot establish the «substantial differences», it may not order compensation measures (BVGer B-4821/2023, E. 3.7; BGer 2C_493/2017, E. 5.3; BGE 140 II 185 E. 4.2).
What must be examined before a measure is imposed?
Before ordering a compensation measure, it should in particular be examined:
- which specific knowledge or activities are said to be missing compared with the Swiss reference qualification;
- whether those differences are actually essential for pursuing the profession;
- which qualification evidence and comparison criteria the authority relies on;
- whether professional experience, additional education or validated competencies already compensate the identified differences in whole or in part;
- whether the required measure is proportionate in its content and scope.
Article 14(5) of Directive 2005/36/EC expressly requires existing knowledge, skills and competences acquired through professional experience or validated lifelong learning to be taken into account before an adaptation period or aptitude test is required.
Typical legal issues
A legal review may be particularly appropriate where:
- the authority refers only generally to differences between the education systems;
- it is not apparent which specific deficits are said to exist;
- an aptitude test is required practically automatically;
- professional experience or additional qualifications have not been taken into account;
- the subject matter or scope of the examination goes beyond the differences actually identified;
- the reasoning does not show why a less burdensome measure would not suffice;
- it is unclear whether the correct recognition framework has been applied at all.
The aptitude test is therefore not the starting point of the recognition procedure. It can only follow a prior finding of specific, substantial differences that have not already been compensated.